from the lucky-us dept

We've been covering the bizarre case of Sarah Jones v. TheDirty.com for a while now. Jones, a high school teacher and Cincinnati Bengals cheerleader, was (perhaps reasonably) offended by some posts and photos by users of TheDirty which made potentially defamatory claims about her. The whole case got off on the wrong foot when Jones' lawyers accidentally sued a totally different site, TheDirt.com, rather than TheDirty.com, which is how the case first drew our attention (also partially worrying us that they'd eventually accidentally sue Techdirt as well). Given the situation, though, it seemed pretty clear that Section 230 protected the site from liability (though not the original people who wrote the allegedly defamatory content). Except, Jones never bothered to go after the users, insisting that TheDirty.com and its founder Nik Richie were liable for the comments. Stunningly, the district court judge rejected the Section 230 defense, arguing that, in part, because the site had "dirt" in its name, Section 230 safe harbors didn't apply. As you might imagine, that hit home for us.

The ruling went a bit deeper than that, obviously, claiming that by republishing and adding commentary to the original submitted comments, TheDirty.com gave up its Section 230 protections, because it was "encouraging" defamation. Because of this, a jury awarded Jones $338k from TheDirty.com and Richie. However, thankfully, this morning the Sixth Circuit appeals court has overturned the district court and issued a nice, clean Section 230 ruling that highlights the importance of Section 230 safe harbors in protecting free speech online, and demonstrating how and why the district court got it so wrong.

The ruling goes through a nice history of the case and Section 230, and then notes the district court's wholly made up "encouragement" test to remove Section 230 safe harbors doesn't make much sense, noting that it was based on misreading existing case law elsewhere. It notes that an "encouragement" test would go against numerous other court rulings that found Section 230 safe harbors valid and would obliterate the purpose of Section 230:

More importantly, an encouragement test would inflate the meaning of “development” to
the point of eclipsing the immunity from publisher-liability that Congress established. Many
websites not only allow but also actively invite and encourage users to post particular types of
content. Some of this content will be unwelcome to others—e.g., unfavorable reviews of
consumer products and services, allegations of price gouging, complaints of fraud on consumers,
reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much
of this content is commented upon by the website operators who make the forum available.
Indeed, much of it is “adopted” by website operators, gathered into reports, and republished
online. Under an encouragement test of development, these websites would lose the immunity
under the CDA and be subject to hecklers’ suits aimed at the publisher. Moreover, under the
district court’s rule, courts would then have to decide what constitutes “encouragement” in order
to determine immunity under the CDA—a concept that is certainly more difficult to define and
apply than the Ninth Circuit’s material contribution test

As the appeals court notes, this clearly goes against what Congress intended:

Congress
envisioned an uninhibited, robust, and wide-open internet,... but the
muddiness of an encouragement rule would cloud that vision. Accordingly, other courts have
declined to hold that websites were not entitled to the immunity furnished by the CDA because
they selected and edited content for display, thereby encouraging the posting of similar content.
... (“Such weak encouragement cannot strip a website of its
section 230 immunity, lest that immunity be rendered meaningless as a practical matter.”); ... We do the same.

This is important for a variety of reasons. Just this morning, I saw a debate break out on Twitter about whether or not someone is liable for retweeting a defamatory tweet. In other parts of the world the answer, ridiculously, is yes. Thankfully, this ruling highlights why that's not the case here in the US. Merely selecting and editing content for display does not remove your safe harbors. In this case, the court goes even further in noting that "ratifying or adopting" others' statements in no way makes you suddenly liable for those statements:

An adoption or ratification
theory, however, is not only inconsistent with the material contribution standard of
“development” but also abuses the concept of responsibility. A website operator cannot be
responsible for what makes another party’s statement actionable by commenting on that
statement post hoc. To be sure, a website operator’s previous comments on prior postings could
encourage subsequent invidious postings, but that loose understanding of responsibility collapses
into the encouragement measure of “development,” which we reject.... As other courts have recognized, the adoption
theory of “development” would undermine the CDA for the same reasons as an encouragement
theory

And thus, Dirty World is protected here:

Dirty World and Richie did not author the statements at issue; however, they did select
the statements for publication. But Richie and Dirty World cannot be found to have materially
contributed to the defamatory content of the statements posted on October 27 and December 7,
2009, simply because those posts were selected for publication.... Nor can they be found to have materially contributed to the defamatory content
through the decision not to remove the posts.... The CDA expressly bars “lawsuits seeking to hold a
service provider liable for its exercise of a publisher’s traditional editorial functions—such as
deciding whether to publish, withdraw, postpone or alter content.”

Also, thankfully for us at Techdirt in particular, the court points out that Dirty World's name doesn't remove liability just because it has "dirt" in it:

Nor
does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content
will be published.

The court also notes that while Richie's additional comment "why are all high school teachers freaks in the sack" may be "absurd," it does not "materially contribute to the defamatory content." Nor, by the way, did Jones claim that Richie's own comments were ever defamatory -- the lawsuit was entirely focused on the content written by others. Instead, Jones' lawyer tried to claim that Richie's non-defamatory comments contributed to the defamation, and thus took away his safe harbor protections. But the court points out how absurd this is:

Richie’s remark was
made after each of the defamatory postings had already been displayed. It would break the
concepts of responsibility and material contribution to hold Richie responsible for the
defamatory content of speech because he later commented on that speech. Although ludicrous,
Richie’s remarks did not materially contribute to the defamatory content of the posts appearing
on the website. More importantly, the CDA bars claims lodged against website operators for
their editorial functions, such as the posting of comments concerning third-party posts, so long as
those comments are not themselves actionable.

And, the court also offers a pretty direct dig at Jones and her lawyers for targeting the wrong party (not the original lawsuit which totally targeted the wrong site, but for going after the site instead of the original commenters):

We note that the broad immunity furnished by the CDA does not necessarily leave
persons who are the objects of anonymously posted, online, defamatory content without a
remedy. In this case, Jones conceded that she did not attempt to recover from the person(s)
whose comments Richie elected to publish. She conceded that she did not attempt to subpoena
Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty
World and Richie. But, under the CDA, Jones cannot seek her recovery from the online
publisher where that publisher did not materially contribute to the tortious content.

All in all, this is a good win for Section 230 safe harbors for online publishers, and a good win for free speech. This case should have gone this way at the district court level -- and it only went sideways because of a confused judge who basically misread or ignored pretty much all precedent on the issue.

Re:

The thing about offensive...

If you are offended by something intended to offend you then you are a fool.If you are offended by something not intended to offend you then you are an even greater fool for you have played into the hands of your enemy.

I cannot remember who said that or something like that, but I definitely agree with it.

I have to agree with the court on this matter. Simply adding "dirt" to your domain name does not absolve you of liability under Section 230. Mike can argue that point but if you have "dirt" in your domain name and you are posting libelous comments on your own website, you are liable for those comments.

Re:

Re:

Wow - did you ever miss the boat.

Under section 230, a website and it's operator(s) are not liable for comments (or other content) posted by the users of the site. The original ruling suggested that having "dirt" in the name of the website could change the site's liability - which is ridiculous, the domain name of the site should have no impact to it's section 230 protections.

Now, if Mike posted something libelous on this (or any other site), he could be held accountable personally for those comments that he specifically made. THAT makes sense - hold the person that made a comment accountable.

Basic common sense - if someone writes a libelous statement on a sheet of paper and pins it to a cork board at the local market, you go after the guy that wrote the statement, not the market owner.

Re:

No one in this has said that adding "dirt" to your domain name absolves you of liability, either under Section 230 or for any other reason.

What the original court said is that adding "dirt" to your domain name leaves you outside of Section 230's protections from liability.

What the appeals court said is that the original court was wrong, and adding "dirt" to your domain name does not change your Section 230 liability-protection status at all.

And of course, yes, if you are posting libelous comments on your own Website, you are liable for those comments - just as if you are posting libelous comments on someone else's Website, you are liable for those comments.

However, if someone else is posting libelous comments on your Website - the reverse of the latter situation - that person is the one who is liable for them; that is the entire point of the Section 230 liability protections.

I only mention this because §230 immunity is so important to the functioning of the web as we know it, that referring to it as a safe harbor may downplay its true power and role in allowing such things like my making this post. Immunity is a nice, strong word that says it all in this context.

Simply having "dirt" in the name of your website doesn't give you immunity from websites, which was what the court was saying. The website claimed that having "dirt" in its website name protected itself from lawsuits, which is not what section 230 says.

Courts are increasingly limiting the protections that website operators have under Section 230. I find it sad that website operators are trying to create more protections for crap that isn't even covered under Section 230.

Section 230 only offers limited protections under very specific circumstances. For instance, if someone posts dafamatory messages on Techdirt and Techdirt refuses to remove those messages, then Techdirt can be held liable for the messages posted by its users. Simply having "dirt" in the name of your website doesn't grant you additional protection ... it doesn't give additional protections or remove any protections just because of the "dirt" name.

Re:

Simply having "dirt" in the name of your website doesn't give you immunity from websites, which was what the court was saying. The website claimed that having "dirt" in its website name protected itself from lawsuits, which is not what section 230 says.

You have that backwards, kenichi (as usual). The judge in initial ruling said that because the site had "dirt" in it's name it no longer was protected via Section 230's safe harbors. And that ruling was incorrect and overturned on appeal.

For instance, if someone posts dafamatory messages on Techdirt and Techdirt refuses to remove those messages, then Techdirt can be held liable for the messages posted by its users.

Re:

Reading comprehension isn't really your thing, huh? The issue with the name was that the district court determined that the sight name thedirty.com "encouraged users to post illegal or actionable content." Nobody was arguing that having "dirt" in the name gave anybody extra immunities than were already afforded under Section 230. If you're being serious with this post, please read more before posting. If you're trolling, have a lovely day.

Re:

Um, I'm sorry, but are you smoking something, Kenichi?The website claimed that having "dirt" in its website name protected itself from lawsuits, which is not what section 230 says.The website claimed nothing of the sort, it was the district court that erroneously concluded that simply having the word 'dirt' in the name of a website took away its Section 230 immunity.For instance, if someone posts dafamatory messages on Techdirt and Techdirt refuses to remove those messages, then Techdirt can be held liable for the messages posted by its users.To correct your statement above: For instance, if someone posts dafamatory messages on Techdirt and Techdirt refuses to remove those messages, then Techdirt cannot be held liable for the messages posted by its users unless it can be proven to have materially contributed to the defamatory statements.As has been said before, no site can be legitimately sued for merely deciding whether to publish, withdraw, postpone or alter content.

Reasonable log retention times...

I wonder if the (intentional deep pockets fishing expedition) lawsuit being aimed at the wrong party may have delayed the discovery of whomever the anonymous commentator is for long enough that it is now impossible to determine the identity of that party?

Re:Reasonable log retention times...

Since there is no legal requirement to store and retain logs for any period, and any user could take moderate steps to obfuscate his identity, going after even the initial poster would likely be fruitless.

- Use Tor and/or a nonlogging vpn in another jurisdiction to post the defamation and the online service provider would still enjoy § 230 immunity.

The interesting fact which is not often mentioned in such cases is that the online service provider enjoys §§ 230 immunity regardless of the technical setup of the online submission system.